DEPARTMENT OF HEALTH 8: HUMAN SERVICES Centers for Medicare 3: Medicaid Services Atlanta Regional Office 61 Street, Suite 4T20 Atlanta, Georgia 30303 CMS FOR MEDICARE MEDICAID SERVICES DIVISION or MEDICAID 8: HEALTH OPERATIONS September 28, 2015 Tennessee Medical Association Attn: Katie Dageforde, JD 2301 215? Avenue, South Nashville, TN 37212 Dear Ms. Dageforde: 1 am responding to your letter to Andrew Slavitt, Acting Administrator of the Centers for Medicare Medicaid Services (CMS), regarding audits being conducted by the Bureau of TennCare (TennCare) of enhanced Medicaid payments made to certain primary care physicians that were required by the Affordable Care Act (ACA) to be made during calendar years 2013 and 2014. The audits have resulted in noti?cations to numerous physicians in Tennessee that payments made to them for primary care services provided during those years will be recouped for failure to meet qualifying criteria. You raise'a number of concerns, which I will address in the order in which they are raised in your letter. In order to qualify for higher Medicaid payment, providers were required to either be Board certi?ed in family medicine, pediatric medicine or general internal medicine, or to have a claims history that demonstrated that at least 60 percent of the codes they billed in a prior period were for evaluation and management or vaccine administration codes. You point out that the law itself did not set criteria for identifying primary care providers and you take issue with the criteria set by CMS. Speci?cally, you indicate that while Board certi?cation is now common practice it was not the case just two or three decades ago and that many older family practitioners, particularly in rural areas, are not Board certi?ed. You also assert that judging a primary care physician based on the percentage of total codes billed that are for and vaccine administration codes is not a good indicator because a good part of any visit to a primary care physician will be for screens, tests or injections not billed using codes. You also indicate that the differences in eligibility criteria between the Medicaid primary care payment program and the Medicare Primary Care Incentive Payment (PCIP) program, which was also in effect during 2012 and 2013, caused confusion among providers. While both programs used 60 percent as a threshold, eligibility for higher Medicaid payment was based on 60 percent of total codes billed, while eligibility for the Medicare payment was based on 60 percent of billed charges, excluding charges for certain types of procedures. Providers erroneously believed that if they quali?ed for Medicare PCIP payments, they would also qualify for Medicaid primary care payments. You urge CMS to establish a more fair eligibility process, such as mirroring the Medicare PCIP eligibility requirements, to mitigate the impact of the audit on your providers. Tennessee Medical Association Page 2 You are correct that the statute did not identify the criteria for eligibility for enhanced Medicaid primary care payments; however, the implementing regulations included the criteria. Those regulations were published as proposed rules in May of 2012 with a thirty day comment period. In developing the regulation, CMS considered using the Medicare PCIP claims history eligibility criteria. However, eligibility for payments was based on a percentage of allowed charges and Medicaid does not make payment based on charges. CMS received a large number of comments on the proposed rule. A large majority of commenters supported both the requirement for Board certification and the alternative of 60% of codes billed as appropriate identi?ers of providers of primary care services and those measures were adopted into the ?nal rule. CMS also published six sets of questions and answers to assist states and providers to understand the manner in which the program was to be implemented. Those documents were posted on the CMS website and were also distributed to State Medicaid agencies. While we regret the impact this is having on your providers, it is not possible to retroactively change the qualifying criteria and the state appears to be properly applying the criteria in identifying providers who were not, in fact, eligible for higher payment under the Federal rule. With respect to the audit itself, the information provided to you by the Bureau of TennCare is correct. The final rule required all states review a statistically valid sample of providers each year who received the enhanced payments and recoup payment that were made to providers determined to be ineligible. While the rule required this be done at the end of 2013 and 2014, it appears that Tennessee has chosen to conduct one review covering both years and to review all claims instead of a statistically valid sample. Based on our review of the regulations, we find that Tennessee has correctly implemented the regulations. While we recognize the recoupment of overpayments may cause a ?nancial hardship for some physicians impacted by the audit, we cannot overturn the state?s audit or require the process be delayed. We would suggest that physicians impacted by the recoupments work directly with the Bureau of TennCare to determine if a ?repayment? plan is feasible. Thank you for your interest and concerns. If you have additional questions about this letter, please contact Kenni Howard at 404-562-7413 or via email at kenni.howardt'iijcms.hhs.gov. Sincerely, Jackie Glaze 6% Associate Regional Administrator Division of Medicaid Children?s Health Operations cc: Linda Tavener, CMS Central Of?ce Janet Freeze, CMS Central Office Darin Gordon, Director, Bureau of TennCare